SHAHZAD KHAN vs THE STATE
This matter concerns a petition for pre-arrest bail filed by the petitioner, Shahzad Khan, who was implicated in a case registered under the Prohibition (Enforcement of Hadd) Order, 1979, following the recovery of 130 bottles of liquor. The core legal question was whether the petitioner was entitled to pre-arrest bail given the allegations of his involvement and the circumstances of the recovery. The Court observed that the petitioner was not apprehended at the scene, and the identity of the person who fled was determined subsequently without independent witness corroboration. Furthermore, the Court noted significant lapses in the investigation, particularly the failure of the Investigating Officer to verify the ownership of a motorcycle seized at the scene, which indicated mala fides or gross incompetence. Holding that the prosecution failed to establish a prima facie case linking the petitioner to the recovered contraband, the Court confirmed the ad-interim pre-arrest bail. The judgment emphasizes that faulty investigation and lack of independent evidence regarding identity are critical factors in granting bail, especially when mala fides are alleged against the investigating agency.
- Is pre-arrest bail justified when the identity of the accused is not established by independent evidence at the scene of the crime?
- Does a failure by the investigating officer to verify ownership of evidence seized at the scene constitute grounds for questioning the bona fides of the investigation?
- Can a court direct an inquiry against an investigating officer for conducting a faulty investigation during bail proceedings?
- Article 3, Prohibition (Enforcement of Hadd) Order, 1979
- Article 4, Prohibition (Enforcement of Hadd) Order, 1979
- Section 497, Code of Criminal Procedure 1898
ORDER
' SAGHEER AHMED QADRI, J.---Shahzad Khan, petitioner has moved this petition for the grant of pre- arrest bail in case F.I.R. No,604 registered at. Police Station Gunj Mandi, Rawalpindi on 22-10-2010 under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 under the allegation that the complainant Muhammad Arif, S.-I. On spy information it was informed that Shahzad alias Masta son of Rustam Khan was about to transport huge quantity of liquor in order to supply it to his customers; that raid was conducted and on seeing the police party a person left behind two plastic bags containing 130 bottles of liquor fled away; that the name of the said person subsequently transpired Shahzad, the present petitioner. On this report the instant case was registered.
2. Learned counsel for the petitioner contends that the allegations levelled against the petitioner are false, lie has not committed any offence; that the, petitioner has been falsely involved in this case with mala fides on the part of the complainant at the behest of his opponent as his brother was murdered and the accused in that case was awarded death sentence but at the time of announcement of the judgment they fled away from the court premises and are still absconders; that those accused persons are now pressurizing the petitioner to compound the offence and the police is also favouring them for that purpose; that the identity of the accused is not proved on record nor the possession of the liquor is proved from the possession of the petitioner; that ingredients of Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 are also not made out from the contents of the F.I.R. As well as the evidence so far collected by the I.O.; that the offence does not fall within the prohibitory clause of section 497, Cr.P.C. And that nothing has to be recovered from the petitioner. Prayed that ad interim pre-arrest bail of the petitioner be confirmed.
3. On the other hand, learned Deputy Prosecutor-General has vehemently opposed this petition on the ground that huge quantity of liquor was thrown by the petitioner and he was able to escape, hence he is not entitled to the concession of grant of prearrest bail. Prayed that this bail petition be dismissed. ,
4. I have heard the learned counsel for the parties and perused the record.
5. The petitioner was not apprehended at the spot although there was a prior information with the complainant/I.O. Even in the F.I.R. The complainant has mentioned that a person was able to fled away from the spot after throwing two bags of liquor whose identity subsequently was determined.
No statement of any independent person was recorded regarding the identity of the person. Even during investigation the Investigating Officer although a motorcycle bearing Registration No,RIW- 3203 was secured into possession but no investigation about its ownership was conducted by the I.O. Who is present in Court and stated so on query by this Court. It shows mala tide on the part of the complainant who is also Investigating Officer of this case as he in spite of the fact that he secured motorcycle into possession did not bother to even check its ownership from the records of Excise and Taxation Department. It seems he is not a competent person and he should not be assigned any such like duties. It reflects the mala fide or lack of interest on part of the complainant/I.O. Of this case.
6. In view of the above, the ad interim pre-arrest bail already .Granted to the petitioner on 24-12- 2010 is confirmed subject to furnishing fresh bail bonds in the sum of Rs,50,000 with one surety in the like B amount to the satisfaction of the learned trial court within one week otherwise this. Order shall be deemed to have recalled.
7.. A copy of this order may also be sent to C.P.O. Rawalpindi with a direction to conduct an. Enquiry into the matter and take action against. Muhammad Arif, S.-I./Investigating Officer for conducting faulty investigation. The requisite report should reach this Court within two weeks positively through the Deputy Registrar (Judicial) of this Bench.